Can you Still Start a Business in Quebec When you are a Foreigner?

With the closing of two of the programs for business people until March 2018, foreign entrepreneurs wishing to start a business in Quebec or buy a business are wondering if they have other options.

The « Businessmen » Programs

It should be noted that Quebec usually offers three programs for business people, as it designates them, intending to settle in the province:

  • The Entrepreneurs category (closed)
  • The Self-Employed category (closed)
  • The Investor category

 

The financial and experience-related criteria for the above programs are summarized in the table below:

Main Criteria  

Entrepreneurs

 

 

Self-Employed

 

Investor
Net income lawfully obtained, alone or with accompanying spouse or common-law partner  

$300 000 CAD

 

$100 000 CAD $1 600 000 CAD

In addition, the signing of an investment agreement of $ 800,000 CAD, with a financial intermediary authorized to participate in the Investor Program.

 Experience required  

Experience in operating a business for at least two years acquired within the five years prior to the date of application in a profitable and lawful business (agricultural, industrial or commercial) Alone or with the accompanying spouse or common-law partner, at least 25% of the shareholders’ equity.

 

Work experience of at least two years in the profession or trade to be practiced in Québec

 

Experience in management in a licensed agricultural, commercial or industrial enterprise; a licensed professional enterprise whose staff, excluding the candidate, holds at least the equivalent of two full-time positions; an international organization or a government, including any of its departments or agencies.

Each of these programs leads to permanent residence. However, these options have a couple drawbacks: processing times extend out over several years and are open, favouring francophone applicants, exclusively by quotas.

In Quebec, offers are therefore rare to obtain permanent residence in the Business category.

This is all the more the case since the Quebec Ministry of Immigration, Diversity and Inclusion announced that the Entrepreneurs and Self-Employed category will remain closed until March of 2018 and that a reform of these programs is in progress.

One important point: under the Canada-Quebec Accord, the province of Quebec operates its own program for entrepreneurs. In other words, foreign nationals wishing to operate a company in Quebec will not be eligible for federal programs such as the Business Start-Up Visa.

Working in Quebec

In this context, is there is no hope of operating a business before 2020 in Quebec? Of course, there is; provided you turn to the options available with regards to temporary residence.

What are the options?

With the exception of those with an open work permit and cases where intra-group transfers are possible, most foreign nationals wishing to enter Québec will have to apply for a work permit as an entrepreneur.

As with a conventional work permit, it is generally necessary to obtain a prior Labor Market Impact Assessment (« LMIA ») under the owner-operator category and then apply for a work permit once a positive or neutral LMIA has been issued.

The main criteria of the owner-operator LMIA, without a job posting, have recently been clarified and are now established as follows:

• Demonstrate that the foreign worker holds a controlling interest in the company; • Demonstrate that this temporary entry will result in the creation or maintenance of employment opportunities for Canadians and permanent residents or the transfer of skills to these same Canadians and permanent residents;

• Not be in a position where they could be laid-off.

The entrepreneur, who is the majority stakeholder within their company, may be exempted from the LMIA process if they can meet the requirements of a C11 exemption; demonstrating in particular:

• The profits and economic benefits generated by the company will remain Canada,• The planned work period must be truly temporary,

• The applicant must demonstrate that the business will bring a significant social, economic or cultural benefit to Canada,

• The service must be unique in that it does not compete directly with companies that are already well established in Canada.

A work permit under this exemption may be issued for a maximum of two years and may only be extended upon presentation of proof of selection as an entrepreneur by a province.

 

Caution

A work permit application as an entrepreneur must be rigorously prepared. In particular, a foreign national must be prepared to provide any evidence to demonstrate the prospect of economic success of the project (i.e. a business plan established by an accountant), past experience as an entrepreneur and what makes them an exceptional candidate.

As the owner of the business they want to operate, the foreign national will not be eligible for the Québec Experience Program (QEP) to apply for the Quebec Selection Certificate. If they intend to remain in Canada upon the expiry of their status, the entrepreneur will be smart to start the process of applying for permanent residence, if they are eligible, within the first few months of receiving their work permit.

The eligibility of the candidate to be selected by a province is easily measurable in advance, even in advance of any project. Think about it!

 

Employment of Foreign Workers: When an Inspection Occurs

As an employer of foreign workers, you are likely to be faced with an inspection by the authorities to verify that the salary conditions offered are the same as those declared when applying for the permit. What are the best practices to adopt in these cases?

A frequent source of consultation with a lawyer on temporary immigration by employers is the receipt of a letter from Service Canada (LMIA) or Immigration or from Refugees and Citizenship Canada (exempt from a LMIA), notifying the employer that they will be subject to a compliance review for one of their foreign workers.

The receipt of this type of letter should not generate any particular fear. Indeed, at this stage, the authorities do not necessarily suspect fraud. Many checks are carried out as part of a random verification of compliance, as provided for in section 209.5 of the Immigration and Refugee Protection Regulations.

The first recommendation is to ensure that the requested deadline is met. If you find the time limit too short, we suggest that you contact the authorities and explain why you need more time.

What are the authorities looking for?

The primary purpose of a compliance review is to ensure that the employer offers the foreign worker the conditions they declared to the authorities when hiring. They are not looking to trap or trick you.

Type of information typically requested:

  • Proof of payment of the declared hourly wage;
  • Respect for social benefits (insurance, pension fund, holidays, etc.) set out in the work permit application;
  • Work assignments assigned to the foreign worker (must be in accordance with the statement submitted in support of the LMIA application or work permit);
  • Evidence that the business has been and remains an active business.

To this effect, the following documents are most often required:

  • Copies of pay stubs;
  • Proof that the worker was able to take their vacation;
  • Copy of the worker’s insurance coverage (if applicable);
  • Proof of payment of any performance-based compensation (i.e. bonus)

Regular LMIA: Employers, Look After your Job Posting!

How do you properly post a job offer as part of an Labour Market Impact Assessment (LMIA) application? This issue is important because poor posting is a frequent source of LMIA refusals.

While there are many exemptions, obtaining an LMIA through the Temporary Foreign Worker Program (TFWP) remains one of the most common routes for the issuance of a work permit in Canada.

The TFWP allows employers to hire foreign workers to address temporary shortages of labour and skills, as defined by Immigration, Refugees and Citizenship Canada (IRCC).

As stated by the IRCC; the employer will have to obtain a notice from the authorities that the hiring of a foreign worker will not have a negative impact on the job market in Canada. The employer must request this notice as part of a Labour Market Impact Assessment (LMIA). A favorable LMIA confirms that the foreign worker will fill a need for labour and that no qualified Canadian is available to fill the job.

Except in specific cases where it is exempted, the employer will generally be required to ensure that the position offered to a foreign worker has been publicly advertised in a well-defined framework in order to give Canadian workers the opportunity to apply.

In this regard, it is common for the employer to be required to modify a posting that does not meet all the criteria set out, or even to completely repeat the process, which considerably delays obtaining an opinion.

Ensuring Compliance of your Job Posting

The basic rules to respect in Quebec are the following:

  • The position must be advertised for a continuous period of a minimum of 30 days, using at least three venues, including the Emploi-Québec search engine and at least one other method considered to have a national scope;
  • All job requirements must be clearly displayed (name of employer, location of job, job title, job duties, salary and other conditions, job requirements, academic background, experience, etc.) As well as providing the contact information required to apply.

Pitfalls to Avoid

  • Using the wrong search engines

For example, in the IT field, for a job in Quebec, you could use Espresso-jobs, Emploi Québec and Workopolis.

  • Copycat posting or self-serving evidence

You have found the perfect foreign candidate to become your production manager, you reproduce their resume as is in your posting. You see that the foreign worker completed a first degree in child psychology, you require this skill in your ad. This will certainly cause the authorities to question your intentions.

  • Do not indicate who is the actual employer in the event of hiring via a recruitment company
  • Do not offer a wage lower than the median salary of the profession
  • Do not indicate a salary or omit certain conditions of employment